Not Every Lie Amounts to Perjury – Lessons from the Coulson Acquittal

Andy Coulson, the ex-editor of the News of the World was cleared of committing perjury – despite what seemed to be a strong case against him. The journalist was acquitted on the 12th day of his trial at the High Court in Edinburgh, after being accused of lying under oath about his knowledge of phone hacking at the News of the World tabloid whilst giving evidence at the perjury trial of Tommy Sheridan, in 2010. There was mounting evidence to suggest that Coulson had lied under oath however, a curiosity in the law means that whether he lied or not was not relevant – the determining factor was whether his lies were relevant to the outcome of the case he lied about.Proceedings against Coulson came to a sudden end when Lord Burns, upheld a submission from the defence that Coulson had not committed perjury because his evidence did not meet the technical definition of the offence under Scots law. QC Murdo Macleod representing Coulson, argued that he client could not be found guilty of perjury because his evidence could not possibly have affected the outcome of Mr Sheridan’s trial.

Under Scots law, to secure a perjury conviction against the accused, the evidence against them must relate directly to the prosecution case and affect the outcome of the hearing.

Lord Burns stated that perjury was giving false evidence under oath which was relevant to the issues in a trial – this meant that the prosecution had to prove that evidence given by Coulson, affected the outcome of the Sheridan trial in 2010.

Lord Burns in fact even set out something of a classic Scots law ‘three-part-test’ for determining whether an accused is guilty of perjury. The test can be summarised as follows:

The accused must have given evidence in court on oath. In this case, Coulson gave evidence at the Sheridan trial in 2010, and this was not disputed.

The accused must have given evidence that they knew to be false. Lord Burns highlighted that this would be a factor for the jury to determine based on evidence presented against the accused.

The alleged false evidence given by the accused under oath or affirmation in judicial proceedings must have been relevant to the issues which arose in the trial in which they were a witness . Lord Burns highlighted that the issue of relevancy is a matter of law, and thus a matter for the judge to decide. He stated that ‘relevancy is always a judge’s question’

In making his decision Lord Burns determined that after two days of legal submissions the prosecution had not satisfied him that the alleged falsehoods made by Coulson had been relevant to the Sheridan trial.

Lord Burns further clarified that under Scots law, relevancy means that the evidence is relevant either in proof of the charge against the accused in a trial or in proving the credibility of the witness, therefore unlike the determination of whether the evidence provided was knowingly false, relevancy must be determined by a judge.

The case is particularly interesting as prior to the trial taking place the outcome seemed clear and thus it presents the rules relating to perjury as being a peculiarity in the law. However, the clear and simple explanation by Lord Burns of the law in Scotland relating to perjury (even if there is little explanation as to why the law is this way) may contribute greatly to authority in this area.

Emma Flood is a first class law graduate based in Scotland. Legal Content Writer and Marketing Assistant at Curated Media, Emma and the team write bespoke legal content for law firms in Scotland and across the UK and can help you make the most out of the Internet through effective content marketing. Tel: 0141 811 0286 to find out more.

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As a proposition of law, the decision on perjury is correct. Perjury is a conduct crime, albeit subject to relevancy.

Like most other crimes in the common law system, to be convicted of perjury one must have had the intention(mens rea) to commit the act, and to have actually committed the act (actus reus).

What is extremely questionable is Coulson’s motives / intent and these cannot be looked at in isolation, in terms of the right to a fair trial as a “whole”. For example, did he pay for a key defence witness to disappear on holiday? Did he also lie about phone hacking? Was further evidence led that emanated from phone hacking?

If Coulson’s did so, then it would clear to most reasonable observers that he has deliberately tried to defeat the ends of justice by such falsehoods and interfering with a witness and breaching privacy laws. If so, there is a more compelling case for (1) Coulson to be further charges and perjury being the least of his worries; and (2) the original conviction has been polluted to such a degree, a retrial is required in the proper administration of justice by way of jury, and not an appellate body trying to judge facts afresh and second guess what the jury may have decided.

Scots law craves ‘certainty’ and ‘finality’ – nothing can be certain or final about this decision as things rest. Unfortunately for Sheridan he has to rely on the Scottish Criminal Cases Review Commission, a state inclined body that lacks structural independence and which to be frank with their desktop reviews, does not deliver public confidence in the ability of the system to cure miscarriages of justice.

Feel we might read a lot more about these conundrums in the months ahead.

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